THE MEDIATION PROCESS|
Printable Fact Sheet
Now that the preludes to the actual mediation have been covered, this section will discuss the elements of the actual mediation. There are five elements to mediation: 1) Mediator's opening statement; 2) Parties' opening statements; 3) Joint discussion; 4) Caucus; and 5) Closure.
1. Mediator's Opening Statement.
The opening statement is the verbal opening of the mediation by the mediator. This is the mediator's first contact in person with the parties together. It is, therefore, an important part of the mediation process. Aside from setting the ground rules for proceeding, the mediator will set the tone for the mediation as well as have an opportunity to gain or lose credibility as a capable neutral.
Because of the importance of the opening statement, it is strongly advised that the mediator be prepared with what he/she will say. Many mediators, once they have developed a good opening statement, always use that same opening statement. Good speaking skills are helpful for the mediator, especially in the opening statement. An inexperienced mediator should practice the opening statement until he/she is thoroughly familiar with it. This will not only make the mediator more comfortable in the mediation's opening minutes, it will allow the mediator to have good eye contact with the parties, thus putting them at ease and increasing their confidence in the mediator. A sample opening statement is provided in Appendix 4.
The first thing a mediator should do in the opening statement is to identify himself or herself to the parties. This introduction not only includes the mediator's identity, but also the qualifications of the mediator. The mediator should explain that he/she is qualified to be the neutral because 1) he/she has been duly appointed to be the mediator; and 2) he/she has been adequately trained in mediation. Of course, any prior experience in mediations should be highlighted.
Another important part of the introduction is for the mediator to acknowledge any acquaintances associated with the parties to the mediation or their representatives and assert his or her neutrality and impartiality in the process. If the mediator is also an Air Force employee or a union official, it is also important for parties to know the mediator's unit of assignment or union affiliation.*35 Disclosure of such information ensures that the parties' consent to the mediator's continued involvement is fully informed, and increases the parties' confidence in the mediator.
The mediator should next confirm receipt of the mediator's letter and agreement to mediate with the parties in which they agreed to mediate the dispute.*36 This confirmation emphasizes to the parties that the other side is there voluntarily and is prepared to attempt to resolve the dispute in good faith. Furthermore, the mediator may want to use the agreement to mediate as a tool later in the process to move beyond impasse. Getting each party to acknowledge their agreement and understanding of the letter makes its use later in the process easier.*37
It is imperative that during the opening statement the mediator establishes the ground rules for the mediation. This includes not only explaining the process, but also laying out the mediator's expectations and rules for the parties.*38 Of particular importance is the need for the mediator to review the confidentiality of the process. While confidentiality should already have been addressed during case intake, the mediator must ensure the parties understand what can and cannot be held in confidence. Finally, the mediator should congratulate the parties for being willing to attempt to settle their dispute and assert a note of confidence in the process of which they are about to undergo.
2. Parties' Opening Statements.
Each party has the opportunity to present an opening statement. Usually the moving party, the Complainant, goes first. The mediator should allow the party to fully explain his or her position. This may be the first time that each party hears the other party's view on the issues. Because of this, the mediator should allow both parties to fully explain their position even if they become emotional. Furthermore, venting by the parties can be the first step in putting the dispute behind them and moving toward resolution.
It is also very important that the mediator listen very closely during the opening statements, paying careful attention to the issues as articulated by the parties. Many times the issues defined by the parties in the opening statement are different from those articulated in the complaint.
Mediators can also learn from a party's opening statement the hidden concerns or interests of the parties and sometimes can even discover the real source of the problem. This type of information is invaluable later when getting the parties to focus on interests instead of positions.*39
The opening statement of the parties can also allow mediators to note how far apart the parties are at the onset. This will give the mediator an initial view of the challenge ahead as well as assist him/her in determining when and if caucuses should be utilized. Of course, the attitudes of the parties and the ability of each party to articulate their positions will also be evident. This information will assist the mediator in determining who may be in need of caucuses more often and how much the mediator will need to assist the parties in understanding the other party's views on the issues.
3. Joint Discussion.
Joint discussion is the first opportunity for the parties and the mediator to interact. The mediator should start the joint discussion by summarizing the parties' opening statements. Clarifying questions should then be asked of each party so the issues can be properly identified. Moreover, this is an opportunity to begin assisting the parties in focusing less on their positions and more on their interests. Careful observation is required, though. Caucus may be the more appropriate forum for more sensitive parties or sensitive interests.
The mediator may allow or encourage the parties to ask questions and discuss the issues more with each other rather than the mediator. The amount and speed of the mediator's withdrawal from the conversation is case-specific and depends on how the parties are able to interact, and whether the emotions or the abilities of the parties make unassisted, face-to-face discussion possible or effective. If the parties are unable to communicate with each other, the mediator should continue to serve as the buffer between the two.
If joint discussion breaks down, or issues arise which are sensitive or which might be confidential, the joint discussion should be suspended and the mediator should move to a caucus. However involved the mediator may be in the joint discussions, it is important that the mediator use active listening skills and take good notes for use in caucus or later joint discussions.
A. Caucus with the Parties.
A caucus is a private meeting between the mediator and one party. Virtually everything discussed in caucus, which was not previously disclosed either before or during the mediation, IS CONFIDENTIAL. Unless the party explicitly grants the mediator permission to discuss some or all of what is discussed in caucus, the mediator must not reveal the information to the other party either in caucus or joint discussion. When the mediator holds caucuses with a party, the mediator should explain the rules on confidentiality before starting the sessions. To avoid confusion, the mediator should verify, at the end of each private session, what information the party wishes to keep confidential and what information can be disclosed to the other party. A party is free to reveal its own communications offered in caucus.*40
Caucuses may be called when the parties need to cool off and refocus, when confidential information needs to be discussed in a protected setting, when options for settlement need to be explored in a secure setting, or when a party needs to save face in front of the other party.
In caucus a mediator can accomplish a number of things beyond getting additional information that the party may not feel comfortable discussing in open session, such as disclosure of possible compromises. While the mediator cannot disclose this information without the express permission of the party, the information may nevertheless be invaluable in assisting the parties to recognize interests as opposed to positions, thus moving them toward settlement. Before leaving the caucus, the mediator should get a clear understanding from each party as to what can and cannot be disclosed to the other party.
In caucus, the mediator also has an opportunity to cultivate a relationship with each party. While it is imperative that the mediator maintains impartiality, it is almost as important that the party has faith in the mediator as well as the process as a whole.
One of the most important tools that can be employed in a caucus is the reality check. While this can be an incredibly powerful tool in getting a party to a reasonable outlook, it can be the most difficult to execute correctly. A discussion of reality checking can be found in the Dynamics section below in Getting Past Impasse. Tips for caucus can be found in Appendix 7.
B. Mediator's Caucus.
Sometimes a caucus is necessary, not because a party needs it, but because the mediator needs it. This is an acceptable reason to call for a caucus. The mediator is responsible for being the calmest, most controlled person in the mediation. If the circumstances of the mediation make meeting this responsibility difficult, the mediator should take a mediator's caucus. In other circumstances, issues will arise during the mediation where the mediator will need guidance from the ADR Champion, SJA, or SAF/GCD. This is another situation where a mediator's caucus is appropriate. Neither party needs to know the caucus is for the mediator.
At some point, after using joint sessions and caucuses, the mediation process will come to a close. This can occur in one of two ways: 1) without agreement/settlement, or 2) with agreement/settlement, either partial*41 or in full.
When settlement no longer seems possible, i.e., there is no more movement by the parties on any of the issues and the parties and the mediator have seemingly exhausted all available mediation tools, or one or both parties have removed themselves from the mediation, the mediation should end. The mediator should again congratulate the parties for availing themselves of the process and encourage them by recounting any progress that was made during the mediation. The mediator should ensure the parties know how to contact the mediator (or the ADR Champion) in the future because, while the mediation has ended, the mediation process is not necessarily over, and either one or both parties may reconsider their decision to stop. Many times the parties may be more willing to remain in the process or may be more amenable to settlement after a period of time has passed. Appropriate follow-up by the mediator or ADR Champion may result in the parties back at the table and an eventual settlement.
In most cases the mediation session will close with at least some of the issues resolved. Once a specific issue has a specific solution proposed and the mediator works through the proposal with the parties to see if it is indeed satisfactory to them, it should be reduced to writing by the mediator, reviewed, and then signed by the parties. A more complete discussion of settlements follows.
*35 To preserve the appearance of impartiality, a mediator who is also an Air Force employee should never be assigned to the same functional organizational unit as either party.
*36 The agreement to mediate is a good source for information to be included in the opening statement. A sample agreement to mediate is found in Appendix 3.
*37 See the section on impasse for more on this use of the agreement.
*38 Some sample rules are included in Appendix 4.
*39 See Part 2, Interest-Based Negotiation
*40 See Appendix 26, 5 USC § 574(b)(1).
*41Partial settlements, though legally acceptable, are nevertheless not encouraged. One of the major benefits of ADR is to resolve the entire dispute with finality and avoid further litigation. Partial settlements frustrate that benefit.